RE: On the Entity Seal in Court Filings

[John Messing <jmessing@law-on-line.com>]

I thank Roger for his comments but I think in all fairness the proposal
is not mine. A group of us including Dallas Powell, Nick Pope and I
were asked to put the matter in a form that the committee could
consider. I believe that I can only take a small portion of the credit
for it.

I think Roger's views are court-centric and come from experience with
paper. A problem with electronic records is that they can be accessed
and changed in undetectable ways, which is not true of paper.
Therefore, when he suggests that one simply open the file and read it
to see if has changed, a question immediately is presented --how do we
know it is the authentic file, and that it has not been altered?. The
fact that it has been stored in the court is certainly better than if
it was not under the custody of the clerk but being in the custody of a
court system or clerk no longer has the same assurance of infallibility
as with paper. Electronic documents are simply constructs of one and
zeroes that are interpreted by machines to display a particular result.
If we pretend otherwise, then we risk destroying the credibility of
legal records and the authority of the courts. Fortunately, this is
avoidable if we prudently adopt technical means that help determine if
the ones and zeros have changed.

Roger's position is a little like saying we will never need geiger
counters in courts because everyone knows that they are not susceptible
to radiation.

A problem with relying solely upon hash values is that they can be
substituted if one has access to a system in order to substitute the
true hash with the hash of an altered file. With an altered file and
its own unique hash, a risk is presented that an altered document will
pass as authentic, even if it has been altered. Once hashes are
encrypted, the situation is different. One can no longer simply
substitute a new hash. An additional layer of difficulty has been
introduced, which requires also obtaining a unique key, that provides a
considerable level of increased protection.

No one has suggested to my knowledge that a tamper-evident seal will
supplant the laws of evidence. On the contrary, such devices are a way
to determine the state and technical properties of evidence. But human
decision makers, in this case judges, will have the final say.

It is better to be safe than sorry, particularly where court records are
concerned. And properly constructed applications will not complicate the
work of clerks. They should act transparently.

My two cents.

> -------- Original Message --------
> Subject: On the Entity Seal in Court Filings
> From: "Winters, Roger" <Roger.Winters@METROKC.GOV>
> Date: Tue, May 24, 2005 9:57 am
> To: 'Nick Pope' <pope@secstan.com>, jmessing@law-on-line.com, 
> legalxml-courtfiling@lists.oasis-open.org
> 
> I thank John Messing for his proposal, because the function of the "entity
> seal" has now been clarified for me. I believe that an "entity seal" (or
> similar tool) should not be made mandatory in Court Filing Blue. Here's why:
> 
>  
> 
> The tools that can provide technical security, ensure authenticity of what
> is filed, etc., are useful in the process of getting the filing into the
> Clerk's (Court's) hands (system). Once there, the filing is "authentic" or
> "valid" or "unchanged" because it is in the custody of the Clerk, not
> because a technical feature was included or procedure performed. 
> 
>  
> 
> When a document is sent to "the Court" for inclusion in the record, it is
> actually sent to "the Clerk of the Court," who has a ministerial function
> and duty to receive and preserve the record, such as it is, for the duration
> of its retention. In a court of general jurisdiction, retention can be
> "indefinite," or "forever." Once the record is in the Clerk's hands (or
> system), it is the Clerk's duty to maintain it. It is not a duty that can be
> handed over to an "entity seal" to authenticate the document at some future
> date -- it is the Clerk of the Court who authenticates it based on having
> had custody of it. 
> 
>  
> 
> In the event of a controversy over the authenticity of a filed document that
> is in the Clerk's custody, an "entity seal" would not settle the matter. It
> might be one item of evidence, but such a dispute will be resolved in the
> Court, based on evidence, laws, and testimony. 
> 
>  
> 
> If one is suspicious that something on file with the Clerk has been tampered
> with, changed in some way, there is also a "SneakerNet"
> verification/validation method -- open the file and read the document! 
> 
>  
> 
> I see a parallel between the "entity seal" of today and the "WORM drive"
> arguments some of us had a few years ago. It was said that a non-rewritable
> drive was essential to protect against any change in documents maintained
> electronically by "the Court" (meaning, of course, the Clerk). 
> 
>  
> 
> It is usually good to look for an analogy in the handling of paper court
> filings -- we do not routinely add anything like an "entity seal" in a paper
> filing.
> 
>  
> 
> It is the duty of the Clerk to obey lawful orders to make changes in the
> court record, including changes in filed documents. Sometimes they must be
> modified, for example, by elimination of a certain name or reference
> wherever it appears in a document that, otherwise, is to remain part of the
> record. (Clerk's staff here, in the paper days, would scissor out such
> information carefully, leaving documents literally full of holes.) Some
> implementations (including King County's) modify every single electronic
> filing by affixing the Clerk's "FILED" stamp and related information onto
> the document, changing the bitmap or the PDF file when doing so.
> 
>  
> 
> Certifying that a copy was made from a document that is part of a Court case
> record is how the Clerk attests to having had custody and control over that
> record. The Clerk doesn't and can't certify the document contains any truths
> or that signatures were made by the right people. It is not a system where
> the possibility of error or fraud has to be eliminated on the way in -
> errors and acts of fraud are things that are discovered and brought to the
> attention of law enforcement and the Court for resolution. 
> 
>  
> 
> ON THE OTHER HAND, the value of a tool like the "entity seal" for winning
> over the hearts and minds of technology-suspicious stakeholders should not
> be underestimated.
> 
>  
> 
> It may be advantageous for an implementer to use the "entity seal." Some
> Clerks may choose not to make any changes to filed documents, for example,
> linking the "FILED" stamp information to it or overlaying, but not embedding
> it. A Clerk might decide that any changes ordered by the Court will be made
> on an exact copy of the original filing, to be re-filed "on behalf of the
> Court" (in its own "new" entity seal) while eliminating or hiding the
> "original." 
> 
>  
> 
> I do not believe that an "entity seal" (as I have come to understand it)
> should be a mandatory feature in Court Filing Blue. As an optional feature,
> it may offer several benefits when designed to support, not inhibit the
> Clerk's performance of his duties.
> 
> 
> Regards,
> 
>  
> 
> Roger
> 
>  
> 
> Roger Winters
> 
> King County
> 
> Department of Judicial Administration
> 
> Continuing Legal Education (CLE) Coordinator
> 
> and 
> 
> Programs and Projects Manager
> 
> 516 Third Avenue, E-609 MS: KCC-JA-0609
> 
> Seattle, Washington 98104
> 
> V: (206) 296-7838 F: (206) 296-0906
> 
> roger.winters@metrokc.gov
> 
>  
> 
>  
> 
> -----Original Message-----
> From: Nick Pope [mailto:pope@secstan.com] 
> Sent: Tuesday, May 24, 2005 8:39 AM
> To: jmessing@law-on-line.com; legalxml-courtfiling@lists.oasis-open.org
> Subject: RE: [legalxml-courtfiling] Groups - Entity Seal Requirements Update
> Docume t (DSS-EntitySeal-inCourtFilingUpdate.doc) uploaded
> 
>  
> 
> John,
> 
>  
> 
> One approach might be to include the XML Signature structure in the syntax,
> identifying the data objects to be protected and the form of protection
> required.  The mechanistic specifics of how to achieve the protection could
> be left open.
> 
>  
> 
> At this stage a key question is whether there is a requirement for
> protecting evidential value / authenticity of court filing submissions, and
> whether the authenticity of submissions is verifiable by all interested
> parties.  If so I suggest some form integrity seal is required.
> 
>  
> 
> Nick
> 
>  
> 
> > -----Original Message-----
> 
> > From: jmessing@law-on-line.com [mailto:jmessing@law-on-line.com]
> 
> > Sent: 24 May 2005 15:02
> 
> > To: legalxml-courtfiling@lists.oasis-open.org
> 
> > Subject: [legalxml-courtfiling] Groups - Entity Seal Requirements Update
> 
> > Docume t (DSS-EntitySeal-inCourtFilingUpdate.doc) uploaded
> 
> > 
> 
> > 
> 
> > The document named Entity Seal Requirements Update Docume t
> 
> > (DSS-EntitySeal-inCourtFilingUpdate.doc) has been submitted by 
> 
> > John Messing
> 
> > to the OASIS LegalXML Electronic Court Filing TC document repository.
> 
> > 
> 
> > Document Description:
> 
> > This document describes a possible additional requirement section to Blue
> 
> > for an Entity Seal, which could be a generic entity seal or one based upon
> 
> > the DSS TC Entity Seal profile. However, DSS has a different IPR policy
> 
> > than LegalXML TC's and so a generic type of entity seal may be preferable.
> 
> > The issue of whether an entity seal should be mandatory or recommended for
> 
> > Blue is left to the TC without a selection.
> 
> > 
> 
> > Best regards.
> 
> > 
> 
> > View Document Details:
> 
> > http://www.oasis-open.org/apps/org/workgroup/legalxml-courtfiling/
> 
> document.php?document_id=12823
> 
>  
> 
> Download Document:  
> 
> http://www.oasis-open.org/apps/org/workgroup/legalxml-courtfiling/download.p
> hp/12823/DSS-EntitySeal-inCourtFilingUpdate.doc
> 
>  
> 
>  
> 
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> 
> -OASIS Open Administration
> 
>  
> 
>  
> 
>  
> 
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